Sunday, June 16, 2013


On Fathers’ Day: What our Founding Fathers gave us

by Larry Geller

If asked what we all received from our Founding Fathers, most people would say something like “our democratic form of government.” But that’s not what they gave us. Although it was not taught in public school history class, we would have to question the democracy claim simply because those Founding Fathers were slave owners. But there is more than just that.

What was developed in 1776 (and in the French Revolution that followed) was a model of federalism that was envied and adopted by countries around the world. Our form of government subsequently developed to represent an ideal of constitutional democracy that also leads the world. This did take time, though, and not all countries interested in federalism embraced democracy (e.g., Imperial Germany). It was simply a great way to set up a national state and fit into the world of nations.

In its original incarnation in early American republican thought about political liberty, order, consent and obligation, federalism was not associated with democracy at all. Indeed, as integral to a republican form of government, it was firmly contradistinguished from democracy, which was equated with mob rule, popular tyranny and the ignorance of the masses.

As the USA progressed so impressively in socio-economic and technological terms in the late nineteenth century so did the reputation of federalism not only as an innovative means of state and nation building but also as the archetype of a new form of territorial state and government whose philosophical foundations were anchored in the concept of civitas or res publico. The new republic gradually came to symbolise the ideal of liberal democratic constitutional government with popular sovereignty vested in the written constitution.

[Federal democracies/edited by Michael Burgess and Alain-G. Gagnon, Routledge series in federal studies, p. 2,3]

Ah, we mustn’t forget the Constitution. Truth is, we don’t seem to remember the Constitution enough. At any level of government, from local up to Congress and the President, laws are passed that violate the Constitution. Government may act in a way later judged to have been unconstitutional by a court. Police act blatantly and knowingly in violation of constitutionally-guaranteed civil rights and are happy to let the city pay the court-ordered settlements later (or in actuality, we taxpayers are made to pay). Typically, the violators suffer no consequences whatsoever. One could be forgiven for believing that the Constitution is just a piece of paper.

There is the myth and the reality around what the Founding Fathers set up as our government and about what the Constitution itself means. Much like Bible studies, different people can interpret both the document and the creation of it in different ways. It’s not uncommon to hear accusations that one court or another is making “new law” or creating a new interpretation of the Constitution not intended by its framers.

Strident representations about the meaning or intent of the Constitution or the role of government depend on the malleability of the mythology. Myths aside, certainly, we are “ruled” by a constitution for only as long as we agree to be bound by it. If we choose to escape from its tenets, we can either physically remove ourselves to another jurisdiction (flee to Canada, for example), change the mythology, or tear it up and write a new one, as happens over and over in countries in the process of overthrowing tyrannical leadership around the world. If we agree to be ruled by it, there’s still wiggle room in the mythology. Is mandates are up for debate since we don’t, in actuality, consider its words to be binding. Selecting a convenient myth reflects a strategy to have our own way despite the words on paper.

So are we truly “ruled” by the Constitution? Do our democratically-elected leaders represent us or rule over us? Democracy, as we know it in this country, involves electing representatives of the people, who continue to represent their constituents while in office and who are sworn to uphold the Constitution. “Representing” us is quite different from “ruling over us.” If we elected politicians to rule over us, it would simply be a variation on the divine right of kings, except secularized. This leads to several possible threads of discussion, however.

For example, again in this country, do politicians represent us or the corporations that control their purse strings and subsidize their re-election? And can an “imperial” president and militarized police be said to represent us or do they truly rule over us? What about their oath to adhere to the Constitution when they seemingly don’t even understand what it means?

It’s a mistake, I think, to put one’s faith in cable TV talking heads for an understanding of how government works today in fact, and also a mistake to confuse with reality their interpretation of what the Founding Fathers intended. There are few scholars on late night cable TV. Any head can talk.

A mythology can by distorted to suit a particular purpose or to advance an ideology or an ambition, for example. Myths are convenient that way. Invoking the intent of our Founding Fathers is to invoke a particular founding mythology. Over time, mythology can overtake and overcome history, as it does in religion.

It’s Fathers Day. We can give a lot of credit to the fathers of our country, but at the same time, dispel the myths that are constantly being touted by political interests. It does our Founders no disservice when we choose to be realistic about constitutional law and political practice in this country at this time. They had nothing to do with the way government is carried out in their name. Often, the law and the practice deviate considerably. What they gave us is a foundation on which to build our own democracy, and it’s up to us to either do that—or not. Which path are we on?

Despite the evolution of our democratic institutions, one thing that’s still absent is any mechanism to enforce adherence to the Constitution in government. Individuals or those in positions of authority may feel that they can disregard the civil rights of others, for example, in practice, there are few consequences for their deeds. If one commits a criminal act, going to prison is a possibility, but if police falsely detain hundred of demonstrators, there are no consequences. Observing this, one might reasonably conclude that the Constitution is really just a piece of paper, but another interpretation is that the police in question simply do not agree to be ruled by it. Nevermind that they swore to do so in the past.

For me, I accept that democracy needs to evolve. We do have the federal form of government in place that the Founding Fathers willed to us, but building a truly representative government that follows the scripture, excuse me, words, of the Constitution, is still a work in progress. We’ve been given a great but incomplete gift, so we need to keep working on it.

Writing this from Hawaii while checking the Guardian newspaper’s app on my smartphone every so often was a bit surreal. Hawaii was annexed unconstitutionally, but annexed nevertheless. Nevermind how that piece of paper seemingly dictates annexation shall be carried out.

Nevermind that I’ve recently written about the lawsuit in New York challenging approximately five million unconstitutional stop-and-frisks on the part of the NYPD.

Never mind the lawsuit here in Honolulu that was needed to enjoin the HPD from unconstitutionally seizing and destroying property off the streets and perhaps even from private property. 

Nevermind that our federal government is spying on us in ways that ought to be unconstitutional.

Never mind torture and indefinite detention.

Really, which way are we headed? I better check the app again to see.


The word "democracy" does not appear in the United States Constitution, because the United States is not a democracy -- we are actually a constitutional republic.

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